Taslima Nasrin And The Fight For Online Civil Liberties!

The struggle for free speech and expression has been a constant one for Taslima Nasrin, a Bangladeshi author and human rights activist, who is known for her powerful writings on women’s oppression and religion. Comments made by her in various publications have often met with opposition from religious fundamentalist groups both in, Bangladesh and India. She has faced numerous physical and other attacks, Fatwas in her name, so much so that she has been forced to live in exile since 1994.

In March 2007, while she was in India on a temporary residential permit, Tauqeer Raza Khan, President of an Indian Islamic group called ‘All India Muslim Personal Board’, issued a Fatwa (edict) against Taslima at a news conference in Bareilly, Uttar Pradesh offering a bounty of 500,000 rupees to any faithful Muslim for her beheading. However, pursuant to this no action was taken by the UP Police against Tauqeer Raza Khan.

In December, 2013 Taslima faced yet another opposition to her writings, but this time it was her “Tweets” that were being objected to and instead of a bounty, an F.I.R. was registered against her at the behest of one Hasan Raza Khan Noori Miyan. The complainant is the son of a prominent Cleric (Maulana Subham Raza Khan Subhani Miyan) of the “Dargah-e-Ala Hazrat” in Bareilly. In his complaint, Hasan Raza Khan alleges that Taslima’s remarks against clerics had hurt the feelings of the Muslim Community. Following a meeting between Aam Aadmi Party chief Arvind Kejriwal and cleric Maulana Tauqeer Raza Khan, in Bareilly on 6th November, 2013 ahead of the Assembly elections in New Delhi, Taslima had tweeted the following:

“Since independence, Indian politicians have been seeking help of clerics who don’t respect human rights, free speech and the Constitution”
“Indians shd speak up against fanatics who vitiate society& push it backward& politicians who encourage them. Else, it’s bad news for democracy”.(sic)

A complaint was thus registered against Taslima under the provision of Section 66A of the Information Technology Act, 2000 and Section 295A of the Indian Penal Code. While Section 295A punishes writings, or signs which insult the religion or the religious beliefs of any class of citizens,Section 66A criminalizes the sending of information using a computer resource or a communication device, if the information is “grossly offensive or has a menacing character”. It uses vague phraseology to identify ‘offensive information’ and includes broad phrases such as “annoyance”, “inconvenience”, “obstruction”, “danger”, “ill-will”, “enmity” or “hatred”, none of which have been defined in the Act. An offense made out under Section 66A attracts a punishment which may extend up to three years as well as a fine. Further, Section 77B of the Act makes such offenses cognizable, which means that whenever a complaint under Section 66A is made, the police shall have the power to register an F.I.R., investigate and arrest an accused (all without a warrant from the concerned Magistrate) under Section 41 and 156 of the Criminal Procedure Code,1973.

Consequently, on 14th December, 2013, Taslima filed a Writ Petition before the Supreme Court in New Delhi, challenging the constitutionality of Section 66A of the Information Technology Act, 2000 and seeking a stay of proceedings in the F.I.R. lodged against her till disposal of the present petition. K.K. Venugopal, Senior Advocate who appeared on her behalf submitted before the Court that the FIR is premised solely on a press report that summarizes some of Taslima’s tweets. However, neither are the actual tweets extracted, nor is a copy of the press report annexed with the FIR. He further submitted that the complaint under Section 66A was registered by the UP Police without even ascertaining whether a cognizable offense was made out or not. The Supreme Court admitted Taslima’s petition and restrained the UP Police from taking any coercive action against her.

The broad wording of Section 66A has resulted in misinterpretation of the statute, which combined with the cognizable nature of the offense has led to widespread arrests. In April, 2012 a Jadavpur University Professor was arrested in Kolkata for circulating a picture spoof on Trinamool Congress leader Mamata Banerjee and Railway Minister Mukul Roy (source). In May, two Air India employees were arrested by the Mumbai Police for putting up content on Facebook and Orkut which was against a trade union leader and some politicians, the two were in custody for twelve days.(source) Then again in November, 2012 two girls were arrested in Mumbai on the basis of a complaint made by members of the Shiv Sena. The girls had allegedly posted comments on Facebook, which questioned the shutdown of the city for Shiv Sena patriarch Bal Thackeray’s funeral(source). The pattern of these arrests shows how Section 66A has effectively become a tool for curbing political dissent.

Disturbed with the arrests, in November 2012 a law student filed a Writ Petition before the Supreme Court challenging the constitutional validity of the draconian provision. In her Petition, Shreya Singhal submitted that Section 66A is indeed capable of wanton abuse in light of the numerous arrests that were made and is most certainly violative of the sacrosanct freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. She also prayed before the Supreme Court that offenses under the Indian Penal Code and any other legislation creating a criminal offense if they involve the freedom of speech and expression be treated as non-cognizable offenses for the purpose of Section 41 and 156 of the Criminal Procedure Code.

As a result the Supreme Court in its order dated 13th May, 2013 made it mandatory for all State Governments to implement the Centre’s advisory on “implementation of Section 66A of the Information Tachnology Act,2000“, issued on 9th January, 2013(source) according to which a police officer may not arrest any person until he/she has obtained prior approval from an officer not below the rank of the Inspector General of Police in metropolitan cities or from an officer not below the rank of Deputy Commissioner of Police or Superintendent of Police at the district level.

Following Shreya Singhal’s petition, six more Writ Petitions were filed before the Apex Court last year, which have challenged different provisions of the Information Technology Act,2000 and rules issued thereunder, as being violative of the Fundamental Rights guaranteed by the Constitution.

The present case of Taslima Nasrin is yet another example of the adverse effect of Section 66A on free speech and expression, and how this fundamental right is suppressed by wanton abuse of the law by State Authorities at the behest of powerful entities. Taslima has also challenged the provision as being violative of Article 14 and 21 of the Indian Constitution. Since she is not an Indian citizen, Taslima is not entitled to claim rights under Article 19(1)(a), although in her petition she has requested the Apex Court to take judicial notice of the same in public interest. As this is one of the many Petitions challenging the validity of Section 66A of the Information Technology Act, the Supreme Court Bench has directed that the present petition be tagged along with previous similar petitions. As per the Court’s latest order, the matters are to be disposed of together on 10th February, 2014.

The intention behind the order of Supreme Court in Taslima Nasrin’s case appears to be an attempt to stall any further miscarriage of justice in light of the ongoing debate over Section 66A. Even as this order comes as a temporary relief for Taslima, her fight against the draconian provision continues, and as the date of hearing approaches one can only hope that the Apex Court takes a stand point that reconciles the emerging technology laws of the country with the fundamental rights guaranteed to its citizens by the Constitution of India.

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